Fennell v. Southern Maryland Hosp. Center, Inc.

• Decision Date: 09 October 1990
• Docket Number: No. 146,146
• Citation: 580 A.2d 206,320 Md. 776
• Parties: , 59 USLW 2236 Robert N. FENNELL et al. v. SOUTHERN MARYLAND HOSPITAL CENTER, INC. et al. Sept. Term 1989.
• Court: Maryland Court of Appeals

Page 776

320 Md. 776

580 A.2d 206, 59 USLW 2236

Robert N. FENNELL et al. v. SOUTHERN MARYLAND HOSPITAL CENTER, INC. et al.

No. 146 Sept. Term 1989.

Court of Appeals of Maryland.

Oct. 9, 1990.

Thomas E. Walker (Greenan, Walker, Steuart & Meng, on brief), Landover, for appellants.

Paul D. Bekman, Scott R. Scherr, Israelson, Salsbury, Clements & Bekman of Baltimore, and John J. Sellinger, Rockville, amicus curiae for Maryland Trial Lawyers Ass'n.

Paul F. Newhouse (Jeri Lynn Balenson, Eccleston and Wolf, on brief), Baltimore, for appellee.

H. Thomas Howell, Kathleen Howard Meredith, Gerard J. Prud'homme, Jeffrey S. Theuer, Semmes, Bowen & Semmes of Baltimore, amicus curiae for Maryland Association of Defense Trial Counsel.

Argued Before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS ^* and CHASANOW, JJ.

CHASANOW, Judge.

Appellants, Robert N. Fennell, Katrina Lynn Fennell, and Robin Tracy Fennell (the Fennells) are the spouse, children, personal representative, and heirs at law of decedent Cora L. Fennell (Mrs. Fennell). The Fennells filed a medical malpractice claim against Appellee, Southern Maryland Hospital Center, Inc. (the Hospital). Both the Health Claims Arbitration Board and the Circuit Court for Prince George's County granted summary judgment in favor of the Hospital. The Fennells appealed, and this Court granted certiorari prior to consideration by the Court of Special Appeals. Pursuant to Maryland Rule 8-413, the parties agreed to and filed a statement of the case in lieu of the entire record. The relevant facts agreed to by the parties are as follows:

"Early on the morning of July 14, 1981, decedent, Cora L. Fennell, woke up with a severe headache. Appellant, Robert N. Fennell, took his wife to the Emergency Room of [the Hospital]. The Emergency Room records indicate that Cora L. Fennell arrived there at 2:27 a.m. on the morning of July 14, 1981. [Mrs.] Fennell was then seen, examined and treated in the Emergency Room by Roy Kring, M.D. After an initial evaluation, Dr. Kring believed that Mrs. Fennell was suffering from a neurosurgical emergency. He contacted by telephone Ronald Uscinski, M.D., a neurosurgeon, for consultation. Dr. Kring conceded that he was aware at the time he evaluated [Mrs.] Fennell in the Emergency Room that her condition was critical. Drs. Kring and Uscinski were primarily concerned about the possibility of an intracranial bleed and it was agreed by these doctors that the patient be transferred to Radiology for a CT Scan. The Hospital chart does not indicate the time that the CT Scan was performed, but it was concluded by Dr. Bach, Plaintiff's expert, that the scan was performed at approximately 3:30 a.m. on the morning of July 14, 1981. Pursuant to the Hospital records, Cora L. Fennell was admitted to the Hospital at 4:00 a.m. on July 14, 1981, and the records note Dr. Uscinski as the admitting physician. The Hospital records further indicate that [Mrs.] Fennell was admitted to the Intensive Care Unit at 5:00 a.m. on the same date. [Mrs.] Fennell arrested at 7:40 a.m. on July 14, 1981, and it was determined by Ronald B. Landman, M.D., who saw her at that time, that she was brain dead. However, she was maintained on life support systems until the early morning hours of July 15, 1981 when she arrested for a second time and was pronounced dead. Although Dr. Uscinski was noted as the admitting doctor on the Hospital chart, [Mrs.] Fennell was not seen by him at any time before she arrested at 7:40 a.m. on the morning of July 14, 1981. [Mrs.] Fennell was not seen by any treating physician at any time between the time she was admitted to the Hospital at 4:00 a.m., and the time she was first seen by internist, Dr. Landman, at approximately 7:30 a.m. on the morning of July 14, 1981, just minutes before she suffered a fatal arrest. The above referenced CT Scan which, according to Dr. Bach, was taken at approximately 3:30 a.m. on the morning of July 14, 1981, ruled out an intracranial bleed and suggested inflammatory process. It was ultimately determined on autopsy that Cora L. Fennell was suffering from meningitis."

In their opposition to the Hospital's motion for summary judgment, the Fennells filed the affidavit of Dr. Michael C. Bach, an infectious disease expert. For the purpose of the motion for summary judgment, the Hospital did not dispute the affidavit. The affidavit established that decedent was suffering from bacterial meningitis. A complication of bacterial meningitis is swelling of the brain, a life threatening condition requiring aggressive treatment. Dr. Bach stated that the CT Scan taken at approximately 3:30 a.m. revealed brain swelling and that proper medical treatment required that a lumbar puncture be completed within one-half hour thereafter. He further stated that had decedent been diagnosed and treated in accordance with the appropriate standard of care, she would have had a 40% chance of survival. He concluded that the failure to follow-up the CT Scan with a lumbar puncture and the failure to immediately and aggressively reduce the swelling of the brain that was detected by the CT Scan were violations of the standard of care, and that as a result, the progress of the disease was irreversible. In effect, Dr. Bach established that decedent had a 40% chance of surviving the meningitis, but that the chance was lost as a result of the Hospital's negligence.

Originally, the Fennells filed both a wrongful death action pursuant to Maryland Code (1974, 1989 Repl.Vol.), Courts and Judicial Proceedings Article, § 3-901, et seq., and a survival action pursuant to Md.Code (1974, 1989 Repl.Vol.), Cts. and Jud.Proc.Art., § 6-401. While these claims were before the Health Claims Arbitration Board, this Court decided Weimer v. Hetrick, 309 Md. 536, 525 A.2d 643 (1987), in which we held that, in a wrongful death case, a plaintiff must prove to a reasonable medical probability that death was proximately caused by the defendant's negligence.

The Hospital filed a motion for summary judgment citing testimony of plaintiffs' expert that decedent, even if treated in accordance with the appropriate standard of care, still had only a 40% chance of survival. The motion for summary judgment was granted by the Health Claims Arbitration panel chairman, and in the Circuit Court for Prince George's County, summary judgment in favor of the defendant was again entered on both the wrongful death and survival counts. The Fennells, recognizing that Weimer is dispositive of the wrongful death claim, have raised on appeal only the summary judgment in the survival claim contending that "the Maryland courts have left open the issue of whether loss of chance is compensable in a survival action where the degree of proof that death was caused by negligence does not meet the 'more likely than not' standard."

Loss of chance may include loss of chance of a positive or more desirable medical outcome, loss of chance of avoiding some physical injury or disease, or a loss of chance to survive. Because the instant case involves a loss of chance to survive, when we refer to "loss of chance," we mean decreasing the chance of survival as a result of negligent treatment where the likelihood of recovery from the pre-existing disease or injury, prior to any alleged negligent treatment, was improbable, i.e., 50% or less.

Negligent treatment resulting in a loss of chance of survival may or may not eliminate all chance of survival or recovery. If the chance of recovery is 40%, as in the instant case, the risk of non-recovery must be 60%; and the loss of the 40% chance of recovery increased the risk of non-recovery to 100%. Thus, the loss of a 40% chance of recovery in this case eliminated all chance of recovery. It is also conceivable that negligent treatment may result in loss of a chance of survival without eliminating all chance of survival. For example, if the patient had a 40% chance of recovery and negligent treatment reduced the patient's chance of survival to 10%, then the actual loss of chance of survival would be 30%. By loss of chance, we mean the net loss of chance of survival directly attributable to the negligence.

Loss of chance medical malpractice actions have been recognized in several other jurisdictions, but the cases do not always clearly state the basis for recognizing the cause of action. A number of jurisdictions have adopted the loss of chance doctrine, ¹ while others have not clearly resolved whether to recognize the doctrine. ² Still other jurisdictions have refused to recognize the loss of chance doctrine. ³

Although we have not yet had the issue squarely before us, speculation has arisen whether Maryland will depart from common law principles and recognize a claim for loss of chance in survival actions. See Cooper v. Hartman, 311 Md. 259, 261, 533 A.2d 1294, 1297 (1987) (even if loss of chance doctrine was to be recognized, facts of case did not warrant its application); Weimer v. Hetrick, 309 Md. 536, 554, 525 A.2d 643, 652 (1987) (loss of chance damages not recoverable in wrongful death action), reversing 67 Md.App. 522, 508 A.2d 522 (1986) (recognizing doctrine); Chudson v. Ratra, 76 Md.App. 753, 764-66, 548 A.2d 172, 178-79 (1988), cert. denied, 314 Md. 628, 552 A.2d 894 (1989) (doctrine considered but found inapplicable); Waffen v. U.S. Dept. of Health & Human Services, 799 F.2d 911, 917 (4th Cir.1986) (pre-Weimer dictum that, under Maryland law, "the loss of a substantial chance of survival is a cognizable harm"); Kroll v. U.S., 694 F.Supp. 1210, 1213 (D.Md.1988) (post-Weimer prediction that loss of chance will be recognized as element of damages in medical malpractice cases). The doctrine has also received attention in the law reviews. See bibliography set forth in Cooper v. Hartman, supra, 311 Md. at 264 n. 3, 533 A.2d at 1296 n. 3. See also Feldman, Chances as Protected Interests: Recovery For the Loss of a Chance and Increased Risk, 17...